The criminal bar needs to transform itself into “fully functioning litigation units” within the next 12 to 24 months if it wants to survive, the chairman of the Bar Council has warned.

Nicholas Green QC also predicted that solicitors who lose criminal legal aid contracts in the latest round of reforms may look to re-enter the market by teaming up with barrister ProcureCos, the new bolt-on which allows chambers to bid collectively for work (see story).

Publishing a blueprint for the profession – The future of the Bar – which is the result of widespread consultation with barristers, Mr Green said criminal specialists need to be able to contract directly with the Legal Services Commission (LSC), which would also require them having full direct access.

He highlighted three key elements to doing this: “First we must help the bar determine how to use the ProcureCo model to bring together the range of skill sets which the LSC will need to see lined up to be able to award a contract… Second we must negotiate with the LSC a contract which will work for the bar. The present LSC contracts are clunky and bureaucratic and tailored only to solicitors’ firms… Thirdly the Bar Council needs to engage with the Ministry of Justice and LSC over new procurement techniques… The procurement system has in the been past been geared towards solicitors and must now be formulated so that it is fair to both the bar and solicitors.”

Having received confidential information from criminal sets on their income, he said many would rank among the largest legal aid practices both in terms of fee-earners and revenue, meaning the bar has the “basic size” to be fully compatible with any size requirements the LSC might impose on those with whom it contracts in future.

He added: “Furthermore, if in any reorganisation solicitors’ firms are culled, then the logical solution for them is to team with barrister ProcureCos and re-enter the market that way. Clerks I have spoken to who have already been thinking through how to set up fully functioning units have been sounding out solicitors and it seems there will be plenty who will be only too pleased to team up with the bar to provide litigation services.”

The report covers a wide range of other issues related to the Legal Services Act reforms:

Direct access

As well as the criminal bar needing direct access, the family bar is likely to need it in the future, while the civil and commercial privately funded bar does not need it but can nonetheless benefit from it.

Entity regulation

The Bar Standards Board (BSB) will need to regulate entities as well as individuals. “If barrister units are to be permitted to engage in activities such as holidng clients’ money and serving court documents, then these tasks are likely to fall upon the employees of chambers, essentially the clerks’ room. It is possible to make the head of chambers responsible for doing these tasks effectively and professionally. But in real and practical terms, this might not prove to be very effective since this would make barristers responsible for money held for their colleagues’ cases and for the service of documents in cases in which they are not involved. The BSB might therefore conclude that this is the primary duty of the entity and hence to allow these activities requires the BSB to be able first to regulate entitites.”

But the growth of barrister entities does not mean the bar will always compete with solicitors. “On the contrary, it could very well prove to be a fruitful source of future collaboration” if chambers bring in solicitors to assist with cases.

Alternative business structures

Mr Green cast doubt on how appealing law firm partnerships will prove to external investors given the increasing mobility of lawyers and clients, while there is little scope of external investment in a set of chambers, while many ProcureCo-type vehicles are likely to be structured as non-profit making.

Improved decision-making within chambers

“Dare one say it but the notion of a chambers meeting determining the future strategy of the set may not now be the best way for decisions to be taken.” Chambers must move away from “the hegemony of the chambers meeting and adherence to Athenian democracy” and embrace more professional decision-making structures.

This will mean the creation of a cadre of professional managers for the bar, specialists Mr Green suggests should be regulated by the BSB as they will increasingly take decisions as agents for the barristers and, if the bar starts holding client money and serving court documents, will take decisions which impact also on the public and administration of justice.

The size of the self-employed bar

“Over the next few years the bar will need to restructure,” Mr Green predicts. There will be mergers and amalgamations of chambers because size will increasingly matter, and in factor ProcureCo models may facilitate co-operation between chambers – because of block contracting – which may act as a precursor to merger.

There will be casualties, Mr Green acknowledges, but “if the net effect of restructuring is a decline in numbers, with the least able simply leaving the profession – this will not be a tragedy”.

Whilst the self-employed bar is likely to shrink, there will be a growth in employed barristers, particularly those employed in legal disciplinary practices – the distinction between self-employed and employed barristers will fall away.

Fusion

“There is a strong public interest in the preservation of a discrete cadre of specialist advocates and advisors.” An analysis of the Legal Services Act shows the complexities of regulation when it comes to advocacy and so the BSB should remain a separate regulator. Fusion is to be avoided.

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